Daniel Fisher
,
Forbes Staff
I cover finance, the law, and how the two interact.

As a couple of commentators at the Volokh Conspiracy have noted, yesterday's Schuette v. BAMN decision rambles across five opinions and more than 100 pages, yet mentions the word "Asian" not once.

The word "minority" appears more than 100 times throughout the decision, and Justice Sonia Sotomayor wrote a passionate, 58-page dissent highlighting the continuing difficulty of certain minority groups to get into the nation's most prestigious colleges and graduate schools. But not Asian Americans. As minorities go, they apparently don't count, at least when it comes to discrimination in higher education.

Sotomayor wrote in defense of the "political process" theory developed in previous Supreme Court decisions that says, in essence, the majority can't reshape the political process to remove race-related questions from consideration by local government officials. It was expressed most firmly in the 1982 decision Washington v. Seattle School District No. 1, which reversed a statewide initiative banning busing programs that the Seattle School District sought to reduce racial segregation in its schools. By taking these desegregation programs off the table, the court then reasoned, the white majority restricted the ability of minorities to effect programs that would benefit them.

A lot has happened since Washington v. Seattle, most importantly the court's affirmative-action decisions in Grutter v. Bollinger and Fisher v. University of Texas, which made it clear that schools can consider race in admissions, but not if that policy is designed to right past wrongs or deliver a benefit to a specific racial or ethnic group. So if African Americans, say, wished to petition University of Michigan officials to admit more black students because it benefitted them, that policy would be invalid under current Supreme Court doctrine. They lost nothing, in other words, when Michigan voters banned race-based preferences.

Asian Americans generally come out on the losing side of affirmative action, however, so Michigan's ban might have served their interests. As George Mason University School of Law Professor David Bernstein put it in this post, "had the dissent been the majority, the Supreme Court would have restructured Michigan’s political process to the disadvantage of Asian Americans." If voters were unable to enact a ban on racial preferences, in other words, Asian Americans would lose the right to join with other groups to pass such a measure -- exactly why Sotomayor said Michigan's Prop. 2 was unconstitutional in her dissent.

The plight of Asian students in U.S. colleges is an embarrassing side effect of admissions policies that consider the race, ethnic background or even national origin of some groups of students but not others. In a brief supporting Michigan in the Schuette case, the Asian American Legal Foundation notes that San Francisco initiated a court-ordered racial-balancing scheme in the 1980s that created nine racial categories, including "Chinese," and prohibited any one group from making up more than 45% of the student body at specific schools. The school board later added four more categories but left "Chinese" as the largest single one, meaning Asian students were more likely to be "capped out" of neighborhood or selective alternative public schools.

The association defeated that policy through litigation and supported California's Proposition 209 in 1996, which like Michigan's later Prop. 2, banned racial preferences in education. But Asian-Americans still complain they are rejected in higher percentages than other students with similar grades and test scores, simply because college administrators fear they are an overrepresented minority on campus. A flurry of lawsuits prompted a U.S. Education Dept. investigation in 2012, and Princeton researcher Thomas Espinshade found that Asian students had to score 140 points higher on their SATs to gain admission to prestigious colleges, compared with white students, while black students had a 310-point advantage. Espinshade was careful to say he didn't think he'd discovered a "smoking gun" illustrating anti-Asian bias, but some Asian-American students suspect it anyway.

At the prestigious University of California Berkeley this year, Asians remained the largest admitted group at 42.3%, while Hispanic and Latino students rose 3% to 20.8%. Researchers differ on whether Asian admission rates have climbed or fallen since the state banned racial preferences in 1998, although this NYU study says their admissions rates at prestigious UC schools actually fell by 16% or more between 1998 and 2009.

In his scathing concurrence to yesterday's decision, Justice Antonin Scalia criticized the court's history of dancing around the affirmative-action question without firmly banning government preferences based on race. Sotomayor's dissent, he said, doesn't explain how courts can separate "discrete and insular minorities" (quoting the world's most famous footnote, No. 4 in U.S. vs. Carolene Products) from other groups less deserving of protection. It's a good question, and Asian-Americans are the best illustration of a minority group that no one seems to want to label as such.